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Here We Go Again: Utah Introduces Its Own “Snowe” Bill To Take Your Domains Away: The Utah E-Commerce Integrity Act

December 16th, 2009 Comments off

Senator Stephen Urquhart a state senator in Utah, and Chairman of the Transportation and Public Utilities and Technology Committee, is sponsoring a law called the “UTAH E-COMMERCE INTEGRITY ACT” which among other things “prohibits the registration of domain names under certain circumstances, commonly referred to as cybersquatting and provides civil and criminal penalties for violation.

The bill as a whole is similar to the Snowe Bill introduced in 2008 into the US Senate which seeks to prohibit and provide penalties for phishing, pharming, spyware, and cybersquatting.

Of course we have no problem against laws that stop the practices of phishing, pharming, spyware and Malware and there are laws on the books against most of that stuff already.

However we are always alarmed when trademark holders get lawmakers to broaden to current laws regarding trademarks as they relate to domain names and this bill should cause a lot of concern for all domainers, whether they live in Utah or not.

As all bills this one is long full of legalese but regarding Cybersquatting the bill states in part as follows:

“A person is liable in a civil action by the owner of a mark, including a personal name, which is a mark for purposes of this section, if, without regard to the goods or services of the person or the mark’s owner, the person:

(i) has a bad faith intent to profit from the mark, including a personal name; and

(ii) for any length of time registers, acquires, traffics in, or uses a domain name in, or belonging to, any person in this state that:
(A) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to the mark;

(B) in the case of a famous mark that is famous at the time of registration of the Domain name, is identical or confusingly similar to or dilutive of the mark; or

(C) is a trademark, word, or name protected by reason of 18 U.S.C. 706 or 36 U.S.C. 220506.
(b) (i) In determining whether a person has a bad faith intent described in Subsection (1)(a), a court may consider all relevant factors, including:

(A) the trademark or other intellectual property rights of the person, if any, in the domain name;

(B) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;

(C) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;

(D) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;

(E) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

(F) the person’s offer to transfer, sell, or otherwise assign, or solicitation of the purchase, transfer, or assignment of the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;

(G) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;

(H) the person’s registration or acquisition of multiple domain names that the person knows are identical or confusingly similar to another’s mark that is distinctive at the time of registration of the domain names, or is dilutive of another’s famous mark that is famous at the time of registration of the domain names, without regard to the goods or services of the person or the mark owner; and

(I) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous.

(c) In a civil action involving the registration, trafficking, or use of a domain name under this section, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.

(4) Statutory damages awarded under Subsection (3)(b) are presumed to be $100,000 per domain name if there is a pattern and practice of infringements committed willfully for commercial gain.

You should also note that this bill makes  not only is the registrant of the domain name liable,  but “the registrant’s authorized licensee, agent, affiliate, representative, domain name registrar, domain name registry, or other domain name registration authority that knowingly and actively assists a violation of this chapter by the registrant.”

This bill has an effective date of  July 1, 2010.

The law already has the support of CADNA which put out a press release today applauding the bill.

CADNA understands that if this bill passes in Utah is has national and federal implications.

This bill is just the first step in getting a federal law passed akin to the Snowe Bill of 2008.

Here are the comments of Josh Bourne, President of CADNA about the Utah Law:

“”"If the Utah E-Commerce Integrity Act becomes law, it will pave the way for serious consideration at the federal level for similar changes”

“Once the United States Congress understands that legislative changes similar to that proposed by Senator Urquhart are good for both businesses and consumers and are especially needed due to our difficult economic times, there should be broad bipartisan support on Capitol Hill.”

“”CADNA is specifically encouraged by the text that expands the liability for cybersquatting activity to include the registrant’s authorized licensee, agent, affiliate, representative, domain name registrar, domain name registry, or other domain name registration authority that knowingly and actively assists a violation of this Act by the registrant.”"

If you thought the CADNA had gone away, or that the government was done regulating your domains, think again.

The ICA was instrumental in defeating the Snowe Bill and now that the tax year is coming to a close I urge you to join the ICA and if you are a member already, renew for 2010.